Ms. X and Cork County Council

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 02 October 2015
• Case Outcome: The Senior Investigator varied the decision of the Council and found that the Council was justified in its decision to refuse access to some records under sections 15(1)(a), 31(1)(a) and 37(1) of the Act. She further found that a number of records did not qualify for the exemption at section 31(1)(a) (Legal Professional Privilege) and she directed their release.
• Record Number: 150070
• Court: Information Commission
• Respondent: Cork County Council

Whether the Council was justified in its decision to refuse access to certain records relating to a grievance case about the applicant, on the basis that the records contain information that is exempt under the provisions of sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 15 October 2014 the applicant made a request to the Council, under the FOI Act, for access to all correspondence between the Council and the applicant relating to a grievance case involving the applicant, from "September 2008 to current date".

In its original decision of 5 December 2014, the Council granted access to a number of records and refused and part granted access to others on the basis of sections 31(1)(a) and 37(1) of the FOI Act. Following an internal review, the Council affirmed the decision. The applicant then wrote to this Office on 6 March 2015 seeking a review of the Council's decision.

In her letter of application to this Office, the applicant identified a number of matters and stated that the file which the Council held about her grievance case was "incomplete", in that the Council had "omitted [a number of] facts". This Office also asked the Council to address the applicant's implied contention that further records existed but were refused under the provisions of section 15(1)(a) of the FOI Act. I consider this in my findings below.

The applicant requested access to records from "September 2008 to current date". In this regard, the "current date" is taken as 15 October 2014, which is the date on which she submitted her request to the Council. The applicant wrote to this Office on 23 July 2015 and referred to documentation that she had submitted to the Council's FOI Office on 6 March 2015. In a situation where records may have been placed in a requester's file after the date on which that person submitted an FOI request to a public body, those records would not be within scope of the applicant's request and subsequent decision of the public body concerned. Consequently, records which may have been included in the applicant's file after 15 October 2014 are not included in the scope of this review.

In conducting my review, I have had regard to the Council's decision in this matter, to correspondence between this Office and the Council, to correspondence between the applicant and the Council and to correspondence between the applicant and this Office. I have also had regard to the records in question and the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the records under sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

Before setting out my findings, I should point out that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited. In addition, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the public body concerned shows to the satisfaction of the Commissioner that the decision was justified.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

The position of the Council is that there are no further records held that are in the scope of the applicant's FOI request. The Council stated that it is "of the view that the complete grievance file, minus the exclusions documented, has been released". In its submission to this Office, the Council stated that two of the matters identified by the applicant in her letter of application to this Office, dated 6 March 2015, related to records that had been released to her: one was in relation to record 41, which the Council had referenced with an incorrect date; the other was identified as record 99 which was released to the applicant on 12 January 2015. The Council said that other issues raised in that letter, such as revised management structure, business plan and organisational chart, did not relate to the grievance case the subject of the request. It stated that correspondence,...